Vt. R. Crim. P. 3

As amended through April 1, 2024

Rule 3 - Arrest Without A Warrant; Citation to Appear

(a) Arrest Without a Warrant for a Felony Offense. A law enforcement officer may arrest without warrant a person whom the officer has probable cause to believe has committed or is committing a felony.

(b) Arrest Without a Warrant for a Misdemeanor Offense Committed in the Presence of an Officer. A law enforcement officer may arrest without a warrant a person whom the officer has probable cause to believe has committed or is committing a misdemeanor in the presence of the officer. Such an arrest shall be made while the crime is being committed or without unreasonable delay.

(c) Nonwitnessed Misdemeanor Offenses. If an officer has probable cause to believe a person has committed or is committing a misdemeanor outside the presence of the officer, the officer may issue a citation to appear before a judicial officer in lieu of arrest. The officer may arrest the person without a warrant if the officer has probable cause to believe:

(1) The person has failed to provide satisfactory proof of identity.

(2) Arrest is necessary to obtain nontestimonial evidence upon the person or within the reach of the person, including an evidentiary test for purposes of determining blood alcohol content.

(3) Arrest is necessary to prevent the continuation of the criminal conduct for which the person was detained, to prevent harm to the person detained or harm to another person.

(4) The person has no ties to the community reasonably sufficient to assure his or her appearance, or there is a likelihood that he or she will refuse to respond to a citation.

(5) The person has previously failed to appear in response to a citation, summons, warrant, or other court order issued in connection with the same or another offense.

(6) The person has violated an order issued by a court in this state pursuant to 12 V.S.A. chapter 178, 15 V.S.A. chapter 21, or 33 V.S.A. chapter 69 or subsection 5115(e).

(7) The person has violated a foreign abuse prevention order issued by a court in any other state, federally-recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico or the District of Columbia.

(8) The person has committed a misdemeanor which involves an assault against a family member, or against a household member, as defined in 15 V.S.A. § 1101(2), or a child of such a family or household member.

(9) The person has committed a misdemeanor offense prohibited by 13 V.S.A. §§ 1376-1379 against a vulnerable adult as defined in 13 V.S.A. § 1375(8).

(10) The person has violated 23 V.S.A. § 1201 (operating a vehicle under the influence), and has a prior conviction under section 1201.

(11) The person has violated a hate-motivated crime injunction issued pursuant to chapter 33 of Title 13.

(12) The person has violated a condition of release that relates to:

(A) a restriction on travel, including curfew;

(B) the operation of a motor vehicle; or

(C) direct or indirect contact or harassment of a victim or potential witness.

(13) The person has violated 13 V.S.A. § 1062 (stalking).

(14) The person has violated 13 V.S.A. § 1023 (simple assault).

(15) The person has violated 13 V.S.A. § 1025 (recklessly endangering another person).

(16) The person has violated 13 V.S.A. § 1304(a) (cruelty to a child).

(17) The person is a sex offender who has failed to comply with the provisions of subchapter 3 of chapter 167 of Title 13 (sex offender registration and notification).

(d) Persons under the Supervision of the Commissioner of Corrections. A law enforcement officer may arrest without a warrant a person under the supervision of the commissioner of corrections:

(1) pursuant to 28 V.S.A. § 301, if the person is on probation and a correctional officer believes the person has violated a condition of his or her probation; or

(2) pursuant to 28 V.S.A. § 363, if the person is serving a supervised community sentence, and a correctional officer believes the person has violated a condition of his or her supervised community sentence; or

(3) pursuant to 28 V.S.A. § 551, if the person is on parole, and a correctional officer believes the person has violated a condition of his or her parole; or

(4) pursuant to 28 V.S.A. § 808, if the person is on furlough, and the law enforcement officer or a correctional officer believes the person has violated a condition of his or her furlough.

(e) Continuation of Custody for Felony Offenses. A person who has been arrested without a warrant for a felony offense may be continued in custody unless the charge for which the arrest was made is reduced to a misdemeanor, and none of the exceptions in subsection (c) of this rule apply.

(f) Continuation of Custody for Misdemeanor Offenses. A person who has been arrested without a warrant for a misdemeanor offense shall be released on citation if:

(1) none of the exceptions in subsection (c) of this rule apply; or

(2) the arrest was made pursuant to an exception in subsection (c) of this rule, and the conditions or reasons for which the exception applied no longer exist and no other exception applies.

(g) Appearance Before a Judicial Officer. A person arrested without a warrant and not released on a citation shall be brought before the nearest available judicial officer without unnecessary delay. The information and affidavit or sworn statement required by Rule 4(a) of these rules shall be filed with or made before the judicial officer when the arrested person is brought before the judicial officer.

(h) Discretionary Issuance by Prosecuting Officer. A prosecuting officer may issue a citation to appear to any person whom the officer has probable cause to believe has committed a crime. The citation shall be served as provided for service of summons in Rule 4(f)(1) of these rules. Probable cause shall be based upon the same evidence required for issuance of a summons or warrant under Rule 4(b) of these rules.

(i) Form. The citation to appear shall be dated and signed by the issuing officer and shall state the name of the person to whom it is issued and the offense for which he or she would have been arrested or continued in custody. It shall direct the person to appear before a judicial officer at a stated time and place.

(j) Filing Citation and Information with Judicial Officer. A copy of the citation to appear, signed by the issuing officer, and the information and affidavit or sworn statement required by Rule 4(a) of these rules shall be filed with or made before the judicial officer at the time for appearance stated in the citation.

(k) Temporary Release. A law enforcement officer arresting a person shall contact a judicial officer for determination of temporary release pursuant to Rule 5(b) of these rules without unnecessary delay. The law enforcement officer shall provide the judicial officer with an affidavit or sworn statement as required by Rule 4(a) of these rules, and information upon which the determination as to temporary release may be made. The affidavit or sworn statement must indicate the crimes to be charged by the arresting officer.

Vt. R. Crim. P. 3

Amended Oct. 31, 1983, eff. 2/1/1984; 1/14/1985, eff. 3/15/1985; 1987, No. 269 (Adj. Sess.), §§ 1, 2; 12/8/1988, eff. 3/1/1989; 1995, 170 (Adj. Sess.), § 29, eff. 5/15/1996; 1997, No. 117 (Adj. Sess.), § 30; No. 152 (Adj. Sess.), § 7; 1999, No. 56, § 5; 9/6/2000, eff. 12/31/2000; 2001, No. 131 (Adj. Sess.), § 2; 12/9/2003, eff. 12/9/2003; 10/1/2006; 3/13/2008, eff. 5/12/2008; eff. 10/1/2008; 9/22/2010, eff. 11/22/2010; eff. 12/5/2016; amended Sept. 5, 2018, eff. 9/5/2018.

Reporter's Notes - 2008 Amendment

The amendment of Rule 3(c)(6), promulgated as an emergency amendment by order of September 29, 2006, effective October 1, 2006, is now made permanent. See Reporter's Notes-2006 Emergency Amendment.

Reporter's Notes - 2008 Emergency Amendment

This emergency amendment is made to conform with an amendment to Vermont Rule of Criminal Procedure 3(c)(6) by the Legislature. See 2007, No. 185 (Adj. Sess.), § 6.

Reporter's Notes - 2006 Emergency Amendment

Rule 3(c)(6) is amended to implement 12 V.S.A. § 5138(a), added by Act 193 of 2005 (Adj. Sess.), § 1, effective October 1, 2006, giving the Superior Court jurisdiction of proceedings on requests for orders against stalking and sexual assault sought by persons other than family or household members. Section 5138(a) provides that orders against stalking or sexual assault issued at the request of a person other than a family or household member may be enforced by "making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure." The amendment provides for arrest without warrant in such cases. The phrase "abuse prevention" order is deleted, because orders under §§ 5131-5138 are a different type of order. The statutory references to abuse prevention orders in Title 15 and Title 33 remain in the rule. Note that warrantless arrests for violation of foreign abuse prevention orders, also made enforceable under Rule 3 by § 5138(a), will be permissible by virtue of Rule 3(c)(7).

Reporter's Note-2016 Amendment

Rule 3(c) prescribes those nonwitnessed misdemeanor offenses for which a law enforcement officer, having probable cause, is authorized to arrest a person. This amendment is made to conform the nomenclature describing the offense of cruelty to a child to legislative enactment amending 13 V.S.A. § 1304. Per Act No. 60 of 2 015, § 25, the Legislature amended the statute to create a felony offense of cruelty to a child, but retained codification of a misdemeanor offense in § 1304(a), which is the subject of V.R.Cr.P. 3(c)(16), recaptioning the section title as "Cruelty to a Child," and deleting former reference in the section title to the age of either the child or the defendant. The amendment makes a nonsubstantive change to the title of the offense specified.